CORRE LEON WELLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the denial of post-conviction relief on ineffective assistance of counsel claims regarding prosecutorial misconduct, finding the trial court failed to refute Wells' allegations with the record and must hold an evidentiary hearing or attach refuting record excerpts.
When a trial court denies a rule 3.850 motion without an evidentiary hearing, factual allegations must be accepted as true unless refuted by the record, and if the record does not refute claims of ineffective assistance for failing to object to prosecutorial misconduct, an evidentiary hearing is required.
[1] When a trial court denies a rule 3.850 post-conviction motion without an evidentiary hearing, the appellate court must accept the defendant's factual allegations as true…
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Standard for appellate review of 3.850 motions denied without evidentiary hearing, citing Floyd v. State
Corre Leon Wells sought post-conviction relief under rule 3.850, claiming his defense counsel rendered ineffective assistance by failing to object to …
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Corre Leon Wells challenges the denial of his motion for post-conviction relief, made on the authority of rule 3.850, Florida Rules of Criminal Procedure, in which he raised several claims of ineffective assistance of counsel. Wells’ motion was denied without an evidentiary hearing, but the record attachments to the order denying relief do not refute Wells’ claim that defense counsel rendered ineffective assistance for failing to object to, or seek a curative instruction regarding, numerous statements by the prosecutor which Wells asserts are improper on vai'ious grounds. When the trial court denies a 3.850 motion without holding an evidentiary hearing, an appellate court “must accept a defendant’s factual allegations as true to the extent they are not refuted by the record.” *589 Floyd v. State, 808 So.2d 175, 182 (Fla.2002); see also Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000). As indicated, the limited record before us does not refute Wells’ claim regarding the failure of defense counsel to address prosecutorial misconduct. We therefore reverse the order denying postconviction relief as to this claim and remand for the attachment of excerpts of record refuting this claim or the holding of an evidentiary hearing on this limited issue. In other respects, the order is affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Occhicone v. State, 768 So. 2d 1037 (Fla. 2000)
- Floyd v. State, 808 So. 2d 175 (Fla. 2002)